Monday, 29 June 2015

EU migration policy: comments on the results of the latest European Council

Steve Peers

Alongside ‘Grexit’ and ‘Brexit’,
the upsurge in immigration to the European Union is a further crisis which the
EU has to juggle simultaneously. The first round of EU reactions to the crisis
culminated in the emergency EU summit (‘European Council’) in April. I discussed
the results of that summit here. Subsequently, the Commission released
its ‘Agenda’ on EU migration in mid-May (see discussion here), and its
detailed proposals later that month (see discussion here). Last week the
European Council discussed immigration issues again, and came to a number of
conclusions. This blog post sets out those conclusions, with my comments
annotated. (I have left out the third part of the conclusions, which vaguely
promise more cooperation with third countries.)

It’s interesting to compare the
final text with the last draft of the summit conclusions (see full text here).
To make that comparison easy, I have indicated below what changed between the penultimate
and final versions of the text. (Underlined words were added to the final
version; words in strikeout were deleted from it).

I. MIGRATION

1. Europe needs a balanced and
geographically comprehensive approach to migration, based on solidarity and
responsibility. Following the decisions taken by the European Council last
April, concrete measures have been taken to prevent further loss of life at sea,
to find new ways of confronting smugglers and to intensify cooperation with
countries of origin and transit, while respecting the right to seek asylum. The
launch of the EUNAVFOR MED mission, decided on 22 June by the Council, is an
important contribution in this respect. Operational action to tackle the
traffickers and smugglers in accordance with international law is an essential
part of our comprehensive approach.

The EU's smuggling mission has officially got underway already, but its second and third phases (where the boats are destroyed) cannot get started until the Libyan government or the Security Council endorse the operation. For details and criticism see here.

2. Further to the Commission's
European Agenda on Migration, work should be taken forward on all dimensions of
a comprehensive and systemic approach.

The summit conclusions
in fact address much of the detail of the Agenda.

3. Wider efforts, including the
reinforcement of the management of the Union’s external borders, are required
to better contain the growing flows of illegal migration. Today, the European
Council focused on three key dimensions which must be advanced in parallel:
relocation/resettlement, return/readmission/reintegration and cooperation with
countries of origin and transit. The Council will regularly assess progress in
all three strands and report back later in the year.

As noted above, I have omitted the third dimension (cooperation with
countries of origin and transit) from this blog post.

Relocation/resettlement

4. In the light of the current
emergency situation and of our commitment to reinforce solidarity and
responsibility, and in line with its April decision in all its regards,
including paragraph 3, the European Council agreed on the following
interlinked measures to help 60.000 people:

Paragraph 3 of the April conclusions refers to the EU interception and search
and rescue missions in the Mediterranean. Odd that such missions dare not speak
their name in these latest conclusions.

a) the temporary and
exceptional relocation over two years from the frontline Member States
Italy and Greece to other Member States of 40.000 persons in clear need of
international protection, in which all Member States will participate;

The final version of the conclusions adds a footnote stating that the UK
will not participate. The number of 40,000 matches the number in the Commission’s
proposal. So does the two-year time-frame, and the focus on Italy and Greece.
The reference to ‘persons in clear need of international protection’ suggests
that the focus will remain on Syrians and Eritreans (as the Commission
proposed), as refugee claims from these two nationalities have a very high
success rate.

b) the rapid adoption by the
Council of a Decision setting up a temporary and exceptional mechanism to
this effect; to that end, all Member States will agree by consensus by
the end of July on the distribution of such persons, reflecting the specific
situations of Member States;

There is a commitment to adopt a legally binding text, although
presumably its content will differ greatly from the Commission proposal, in
particular because many Member States dislike the idea (or the detail) of the
Commission’s proposals on distribution. The added agreement that the distribution
will be agreed by ‘consensus’ means effectively that the numbers accepted in
each Member State will be voluntary, although the Treaty calls for qualified
majority voting on this issue. The added reference to ‘specific situations’ is (according
to press briefings) intended to exempt Hungary and Bulgaria from obligations,
in light of the large number of asylum-seekers they currently receive.
Obviously it is hard to see how the legally binding target of 40,000
asylum-seekers can actually be met if Member States only have to volunteer to
take the relevant numbers. If a Decision with such an obligation is adopted but
the offers of admission fall short of 40,000, there could be an interesting
legal question as to whether and how the numbers could still be enforced.

c) the setting up of reception
and first receptionstructured border zones and facilities in the
frontline Member States, with the active support of Member States' experts and
of EASO, Frontex and Europol to ensure the swift identification, registration
and fingerprinting of migrants ("hotspots"). This will allow to
determine those who need international protection and those who do not. The
Commission will draw up, in close cooperation with the hosting Member
States, a roadmap by July 2015 on the legal, financial and operational
aspects of these facilities;

The reference to ‘structured border zones’ in the earlier draft has
been altered, perhaps because some perceived it as a form of quarantine. Frontex
is the EU borders agency, and the EASO is the EU asylum support agency. They
don’t have powers to fingerprint migrants etc as such, but they can help
coordinate Member States’ actions. On the other hand, it’s not clear why
Europol, the EU police agency, needs to be involved, and indeed the conclusions
seem to call for it to exceed its legal powers. It has a potential role in
investigating smugglers, but the conclusions refer only to its involvement in an
immigration law process.

Fingerprinting of irregular migrants who cross the external borders, as
well as asylum-seekers, is a long standing EU law obligation in the Eurodac
Regulation, but frontline Member States have often been accused of not applying
it. If more such people are fingerprinted, then it will be easier to guarantee
their return from other Member States like the UK under the EU’s Dublin rules
on asylum responsibility, if those migrants travel to another Member State and
apply for asylum there. The Commission recently released a paper on coercive methods to fingerprint migrants, discussed here.

d) the immediate provision of
enhanced financial assistance to the frontline Member States to help alleviate
the costs of receiving and processing applications for international
protection;

An emergency EU budget increase has already been approved.

e) the agreement that all Member
States will participate including through multilateral and national schemes
in the resettling of 20.000 displaced persons in clear need of international
protection, reflecting the specific situations of Member States.

This matches a non-binding Commission Recommendation on this issue,
which has already been adopted. Resettlement means that the persons
concerned are moved straight from refugee camps in countries like Lebanon or
Turkey. In fact the wording (‘displaced persons’) also covers Syrians who have
fled to camps elsewhere within Syria. Legally speaking this group of people aren’t
‘refugees’ since they haven’t left their home country; international law refers
to people who have fled within their own countries but who still have great
protection needs as ‘displaced persons’ instead. They could qualify as ‘refugees’
once reaching the EU, however, since they would necessarily then have left
Syria. The UK has pledged a very small increase in the small numbers of
refugees that it currently resettles.

Return/readmission/reintegration

5. Effective return, readmission
and reintegration policies for those not qualifying for protection are an
essential part of combating irregularillegal migration and will
help discourage people from risking their lives. All tools shall be mobilised
to promote readmission of irregularillegal migrants to countries
of origin and transit, building on the ideas presented by the Commission at the
Council on 16 June.

Notice the word ‘illegal’ was changed to ‘irregular’, to address
objections that the word ‘illegal’ is the wrong term to use. There is a
footnote referring to the letter and it can be found via Google, but it is
hardly transparent not to attach it as an Annex to the Conclusions. It’s not
hyperlinked to the conclusions either. But you can follow this link for
the text of the Commission letter and discussion of it.

It must be noted that this section only
applies to people who do not qualify as refugees or for some other form
of protection. Some press stories had suggested, on the basis of leaked drafts
of the conclusions, that the EU wants to ‘send all the migrants back’. This is patently
false: this section is clearly limited in scope (‘those not qualifying for
protection’) and the first section of the conclusions not only shows an
intention to relocate people needing protection within the EU but also
to bring more of them to the EU. Since a significant proportion of
migrants come from Syria and Eritrea, and a huge proportion of their asylum
claims are successful, anyone who claims that ‘the vast majority of people
crossing the Mediterranean are economic migrants’ is quite simply lying.

In particular: a) high-level
dialogues with the main countries of origin of irregular migrants should be
launched by the High Representative as soon as possible, in close cooperation
with the Member States. The Council, together with the Commission, will prepare
a global package to support the negotiations with the third countries
concerned;

Most of the issues here are not foreign policy issues as such, so the
High Representative should only be discussing them in her role as the coordinator
of her colleagues in the Commission, not as foreign policy representative. So this
looks like an internal Commission power grab, although it’s probably also true
that she will come with more political authority than the Home Affairs
Commissioner. There may of course be a corresponding power struggle between
national foreign and interior ministries here.

b) the Commission will ensure
that readmission commitments are implemented effectively as soon as possible,
notably those under the Cotonou Agreement, and that ongoing negotiations on
readmission agreements are accelerated and concluded as soon as possible, while
new negotiations will be launched with other third countries;

The ongoing negotiations are with Belarus (nearly complete), Morocco
and Tunisia. Talks with Algeria and China were approved years ago, but never
started. The ‘Cotonou’ countries are sub-Saharan African, Caribbean and small
Pacific island States, although obviously the conclusions are referring only to
African states.

c) building on the
"more-for-more" principle, EU assistance and policies will be used to
create incentives for implementing existing readmission agreements and
concluding new ones. Commitments set out in trade agreements regarding the
temporary presence of persons for the provision of services should be used as
an incentive to conclude readmission agreements; development policy tools
should reinforce local capacity building, including for border control, asylum,
counter-smuggling and reintegration;

The EU has concluded readmission treaties with most countries to the
east and south-east by offering visa facilitation deals, and in some cases the
long-term prospect of a visa waiver. It has also offered visa facilitation to
Morocco and Tunisia. It’s clear from the other recent documents that the EU doesn’t
want to offer visa facilitation to sub-Saharan African countries, hence the
quite new idea of offering them admission of service providers instead.
Interestingly, the market access aspects of service provision apply to all
Member States (ie, including the UK), although the immigration law aspects
(such as facilitated visas and permits just for this category of persons)
arguably fall within the scope of immigration law, where the UK opt-out
applies. The Commission’s migration agenda had referred to plans to propose
rules on this issue, but it had not linked them to readmission.

As for development policy cash, this also applies to all Member States,
unless some external money in the home affairs budgets can be used. This phrase
could also refer to national development policy budgets. The important question
is whether this is new money, or will be diverted from building schools or
hospitals, or aiding human rights defenders.

d) Member States will fully
implement the Return Directive, making full use of all measures it provides to
ensure the swift return of irregular migrants; return decisions issued by the
Member States will be introduced in the Schengen Information System;

Fully implementing an existing law sounds uncontentious, but in fact
the Commission paper referred to above urges Member States to lock up irregular
migrants for as long as possible and to use derogations in that Directive, which
could justify limiting judicial review, and holding irregular migrants
(including families) in prisons, mixed in with the general prison population of
convicted criminals. Further comments on this here.

Some or all entry bans are already introduced in the Schengen
Information System (SIS), and the Commission plans to propose a legal
obligation that all of them will be. But introducing all return decisions
in the SIS is quite new, since not all return decisions result in entry bans. In
fact, this is the first new category of data to be added to the SIS since it
was established. It will take some time and money (as well as new EU
legislation) to set this up.

Note that the UK will not have access to this data, since it does not participate
in the immigration-related aspects of the Schengen system. It does have access
to the separate Eurodac database, of people who applied for asylum or crossed
the borders irregularly in another Member State, although it can only access
this is those people then apply for asylum in the UK.

e) the Commission will set out by
July 2015 how Frontex will bring immediate support to frontline States on
return. The Commission has announced its intention to propose to amend the
Frontex Regulation to strengthen the role of Frontex, notably so that it can
initiate return missions;

The Commission paper also wants to give Frontex a role in going to
third countries and arranging return flights, and in expelling people from a
single Member State. The last set of amendments to the Frontex Regulation in
2011 allow Frontex to have its own assets. Perhaps ‘Air Frontex’ – the one
airline you never want to travel on – is coming?

f) in order to accelerate the
treatment of asylum applications, the Commission will set out by July 2015
measures to be taken to use EASO to coordinate the implementation of the
"safe country of origin" provisions in the Asylum Procedures
Directive. The Commission has indicated its intention to strengthen the
"safe country of origin" provisions in the Asylum Procedures
Directive, including the possible establishment of a common EU list of safe
countries of origin;

It’s not clear what EASO will be doing here. It can’t decide on asylum
applications, but only give guidance. As for the legislative proposal, the
Council tried to agree on a common list of safe countries of origin in 2005,
but failed epically. It’s not so problematic to include countries where the
failure rate is 99%, but becomes difficult to include countries where even 10%
or 20% of applications are successful – since that is a lot of people whose
claims won’t be adequately assessed.

g) adequate means will rapidly be
made available in support of an effective EU return policy; furthermore, the
Commission is invited to make proposals in this respect in the context of the
2016 EU budget, and to set up a dedicated European Return Programme.

This suggests more cash will soon be available for removals. It looks
as if the ‘European Return programme’ is simply going to be an official name
for this pot of cash, to give it greater visibility.

Final comments

Some analysis of the summit suggests
that it was a failure on immigration issues, because Member States wouldn’t
agree to binding quotas on relocation of refugees. This isn’t necessarily the case. The summit
conclusions still refer to adopting a binding measure requiring the relocation
of 40,000 people. If Member States do end up relocating 40,000 refugees, there’s
not much point quibbling about exactly how they did it. However, the
replacement of quotas by voluntary offers makes it less likely that this number
will be achieved, and in that case the Council might decide not to adopt the Decision
after all.

Having said that, even if the
number of people relocated ends up at 20,000 or 30,000, instead of 40,000, that
will contribute to reducing the pressure on Greece and Italy. It will be
significantly more than the piddling number of people relocated in the past. The
very existence of this commitment is an implicit admission that the Dublin
system is a failure. And the commitment to resettle 20,000 people is a bigger
contribution than the EU has made before in that context too.

All this is counterbalanced by
the decisions on return and readmission. It seems that there is a quid-pro-quo
between a more generous policy on asylum and a more restrictive policy on
irregular migration. Certainly this part of the conclusions shows the
importance of implementation of EU law by the Member States. The Commission has
committed itself to encouraging Member States to apply the Directive as
restrictively as possible, so it will fall to NGOs and migrants’ legal advisers
to monitor what goes in practice, and challenge it if necessary.

‘The Commissioner suggested that
we do it’ is not in any way a sufficient legal reason to lock up families
together with convicted prisoners, while limiting judicial review. Rather, any
Member State wanting to apply exceptions from detention standards in the
Returns Directive has to show that an ‘exceptionally large number of
third-country nationals to be returned places an unforeseen heavy burden on the
capacity of the detention facilities of a Member State or on its administrative
or judicial staff’, presumably separately (ie it’s possible that the facilities
are overburdened but the judges aren’t, or vice versa). It must also end the
derogation as soon as conditions have changed, and also inform the Commission.
CJEU case law (Kamberaj)
suggests, by analogy, that the decision to lower detention standards is invalid
unless that latter procedural requirement is fulfilled. There’s a good argument that derogation clause
is itself invalid, as a breach of the Charter rights to family life, access to
court and the rights of the child. At the very least it must be interpreted in light
of those Charter rights, and the similar protections set out in Article 5 of
that Directive.